One of the more amusing things revealed last week when Arizona's secretary of state came out as birther curious was that Hawaii officials just simply don't believe he's qualified to investigate Barack Obama's birth certificate.

Sure, Ken Bennett says he's the man in charge of deciding whether President Obama is eligible to be on Arizona's ballot in November, but the response from people in Hawaii's government has been: Prove it. In essence, they're giving Bennett a taste of his own medicine, making him jump through a series of hoops to prove he has the legal authority to investigate the matter, much the same way the birthers have made Hawaii prove time and time again that the president is indeed a natural born citizen of the United States.

On Monday, TPM filed a public records request for the correspondence between the Hawaii government and the Arizona Secretary of State's Office. The results show Bennett and his staff grew ever more impatient with the slow pace of Hawaii's response before the secretary finally took to a local conservative radio talk show on Thursday to voice his concerns.

"Hello Jill. I just left you a brief voice mail message," Arizona Deputy Secretary of State Jim Drake wrote in an email to a Hawaii attorney on May 1. "I am wondering whether you can give me a ballpark timeframe on our request. As you know, the closer we get to November, the more my phone rings. I believe that having Hawaii's response on hand might help to quell the inquiries!"

Deputy Attorney General Jill Nagamine's response? "We need more information to substantiate that you are eligible to receive verification."

In an interview with the Associated Press late Friday, a spokesman for the Hawaii attorney general said Bennett still has yet to show that he legitimately needs a verification of Hawaii's birth certificate despite numerous emails back and forth.

Hawaii officials have plenty of reasons to push back. Birtherism is a conspiracy theory fueled by a fringe group of writers and activists unwilling to believe Obama is a natural born citizen and therefore eligible for the presidency no matter how much evidence they get.

The effect is that Hawaii has been overloaded for years with requests for verification of the president's birth certificate, getting as many as 50 new requests a month. Hawaii officials have passed laws and filed sworn affidavits to deal with the matter. The White House has even gone as far as to release a copy of the president's long-form birth certificate to the public. Yet requests like Bennett's still keep coming.

In the interview with the conservative radio host last week in Phoenix, Bennett described himself as "not a birther." He said he believed the president was born in Hawaii, but he qualified it by adding "or at least I hope he was." His investigation, he said, wasn't driven by his personal belief. It began after a flood of emails into his office from birthers in Arizona, asking him to look into the president's eligibility.

But during the interview, Bennett, a Republican and Mitt Romney's Arizona co-chair, also said that if he doesn't get a satisfactory answer from Hawaii, it's "possible" he'll keep the president off the ballot in November.

Here now is the correspondence chain, starting with an email from Nagamine, the Hawaii deputy attorney general, which apparently followed a phone conversation between her and Bennett. The secretary's first written request comes after that. Also included at the end are two emails Bennett sent to birthers who had been heckling him about the fact that Obama was still on track to be on Arizona's ballot. TPM has edited out things like home addresses, email addresses and phone numbers.

So sorry I've taken so long to get back to you. I may take a few more days to get your final response about what we can verify and how we will do so. I have been tied up with some legislative deadlines that take precedence. To start with, here are the links that I mentioned to you.

The first link is to the Department of Health's website that was created in response to the high volume of inquiries about the President's birth certificate. It includes the press releases issued by the former Republican-appointed Director of Health.
http://hawaii.gov/health/vital-records/obama.html

Enclosed please find a request for a verification in lieu of a certified copy for the birth record of Barack Hussein Obama II. In addition to the items to be verified in the attached form, please verify the following items from the record of birth:

Department of Health File #151 61 10641
Time of birth: 7:24 p.m.
Name of hospital: Kapiolani Maternity and Gynecological Hospital
Age of father: 25
Birthplace of Father: Kenya, East Africa
Age of mother: 18
Birthplace of mother: Wichita, Kansas
Date of signature of parent: 8-7-1961
Date of signature of attendant: 8-8-1961
Date accepted by local registrar: August-8 1961

Additionally, please verify that the attached copy of the Certificate of Live Birth for Mr. Obama is a true and accurate representation of the original record in your files.

Thank you for speaking with me several weeks ago and providing the helpful links below. I sent a request for a verification in lieu of a certified copy of President Obama's birth record to the Dept. of Health on March 30th. I was just wondering if you knew whether the request was received and how long it usually takes to process? Thanx.

Hello Jill. I just left you a brief voice mail message. I am wondering whether you can give me a ballpark timeframe on our request. As you know, the closer we get to November, the more my phone rings. I believe that having Hawaii's response on hand might help to quell the inquiries! Thanks in advance. Jim

My apologies for not responding immediately. I have recently been away from my office a great deal, including today. My client, the Department of Health, has forwarded your request for verification of President Obama's birth record to me. We need more information to substantiate that you are eligible to receive verification. Hawaii Revised Statutes, section 338-18(g), provides:

(g) The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:

(1) A person who has a direct and tangible interest in the record but requests a verification in lieu of a certified copy;
(2) A governmental agency or organization who for a legitimate government purpose maintains and needs to update official lists of persons in the ordinary course of the agency's or organization's activities;
(3) A governmental, private, social, or educational agency or organization who seeks confirmation of a certified copy of any such record submitted in support of or information provided about a vital event relating to any such record and contained in an official application made in the ordinary course of the agency's or organization's activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;
(4) A private or government attorney who seeks to confirm information about a vital event relating to any such record which was acquired during the course of or for purposes of legal proceedings; or
(5) An individual employed, endorsed, or sponsored by a governmental, private, social, or educational agency or organization who seeks to confirm information about a vital event relating to any such record in preparation of reports or publications by the agency or organization for research or educational purposes.

As the Secretary and I initially discussed, it appears that you might be eligible for verification of the record based on subparagraph (2), but we need to see what your authority is "to update official lists of persons in the ordinary course of your activities." Will you send me a copy of your law that allows this, and will you send me information that shows:

(1) What list are you updating?
(2) Is it your normal procedure to update all entries on your list by requiring birth data verification?
(3) Are you requiring birth data verification of all entries on your list, rather than just targeting one name on your list? (please provide evidence that you are doing so)

You may address your response directly to me, and I will relay it to my client.

As the chief elections officer for the State of Arizona and pursuant to Arizona Revised Statutes, sections 16-212, 16-301, 16-502, 16-507 and others, my office is tasked with quadrennially compiling a list of candidates for the Office of the President of the United States. This list is then officially "certified" by my office and transmitted to the fifteen counties for creation of the official ballots. The list is generated in the "ordinary course" of my office's activities (every four years) and it is certainly made for a "legitimate government purpose" (elections).

Based on the above representation, I believe that my office has strictly and expressly complied with all of the elements found in Hawaii Revised Statutes, section 338-18(g).

I understand your client's initial trepidation in responding to this request given the significant amount of email, fax and phone call traffic that this issue has spawned. My office too has received numerous constituent requests and I agree with Director Fuddy's assertion in her letter of April 25, 2011 that the sheer volume of inquires has "been disruptive to staff operations and have strained State resources." However, I am concerned that a rejection of a request by another State's chief elections official will dramatically exacerbate an already untenable situation.

I am in receipt of your email dated May 17, 2012. As I have informed you and Mr. Drake, Hawaii law requires that for verification of a vital record the requestor must satisfy the requirements of section 338-18(g), Hawaii Revised Statutes, which provides:

(g) The department shall not issue a verification in lieu of a certified copy of any such record, or any part thereof, unless it is satisfied that the applicant requesting a verification is:
(1) A person who has a direct and tangible interest in the record but requests a verification in lieu of a certified copy;
(2) A governmental agency or organization who for a legitimate government purpose maintains and needs to update official lists of persons in the ordinary course of the agency's or organization's activities;
(3) A governmental, private, social, or educational agency or organization who seeks confirmation of a certified copy of any such record submitted in support of or information provided about a vital event relating to any such record and contained in an official application made in the ordinary course of the agency's or organization's activities by an individual seeking employment with, entrance to, or the services or products of the agency or organization;
(4) A private or government attorney who seeks to confirm information about a vital event relating to any such record which was acquired during the course of or for purposes of legal proceedings; or
(5) An individual employed, endorsed, or sponsored by a governmental, private, social, or educational agency or organization who seeks to confirm information about a vital event relating to any such record in preparation of reports or publications by the agency or organization for research or educational purposes.

I asked you for legal authority that establishes your right to obtain verification, and your email of May 17, 2012 provides me with references to Arizona Revised Statutes 16-212, 16-301, 16-502, 16-507, and unnamed others. These statutes seem to deal with election of presidential electors, nomination of candidates for printing on official ballot of general or special election, form and contents of ballot, and presentation of presidential candidates on ballot, but none, as far as I can tell, establish the authority of the Secretary of State to maintain and update official lists of persons in the ordinary course of his activities. I researched other sections of the Arizona Revised Statutes and was unable to find the necessary authority.

If I have missed something, please let me know. My client stands willing to provide you with the verification you seek as soon as you are able to show that you are entitled to it.

Thank you,
Jill T. Nagamine
Deputy Attorney General
State of Hawaii

—

Emails Bennett Sent To Birthers:

On Mon, Apr 16, 2012 at 4:37 PM, Bennett, Ken wrote:

Dear Tom,

It offends and saddens me that anyone would characterize me as having "little interest" in the electoral eligibility of the President. Nothing could be further from the truth.

I have personally met with Representative Seel, Jeff Lichter, and many others on multiple occasions. After considering the various options when we started working on this two or three years ago, I have consistently suggested what I believe is the best action: establishing a special private right of action in state law allowing any Arizona elector to challenge a presidential candidate's qualification for office under expedited time frames in the courts. Ironically, I think that, after trying several other approaches, that's what was most recently proposed in the Legislature by Carl. As the filing office for statewide, legislative and federal offices, our office does not have the resources, nor would I think it appropriate, to verify filings other than for elements that can be determined on their face: number of signatures submitted, completeness of documents, formation of committees, etc. Only in the courts can subpoena power, rules of evidence, and other judicial tools compel the production of and give impartial consideration to evidence on both sides.

Having said that, there are things we have been and are doing to insure the integrity of our ballot. First, we have revised the nomination forms and informed the parties that we will not include a Presidential or VP candidate on the ballot unless the candidates personally swear to meeting the itemized qualifications required in the Constitution. (In 2008, the Democrat nomination form simply said that their candidates had been "nominated" at the Party Convention)

Additionally, I have asked the State of Hawaii for a "verification in lieu of a certified copy" of the birth record of President Obama, as contemplated under HRS 338-18. This action was prompted, in large part, by constituents here in Arizona who wanted me to do whatever I could to verify the President's eligibility. If the State of Hawaii does not confirm that he was born in Hawaii, his name will not appear on Arizona ballots.

From the tone of your letter, I assume you have personally concluded that Barack Obama is not qualified to hold his office, so the above actions probably fall far short of your desired outcome. However, I am doing what I think fulfills my oath of office based on the rule of Law. If you disagree with my past or future actions, you can obviously seek judicial review in the Courts.

Thank you for your emails seeking resolution to President Obama's qualification for office and, therefore, his right to be on our ballot. In your calls for me to make sure he follows the law and is "subject to the same rational and reasonable standards as every other citizen", it is imperative that we follow the rule of law as well.

Arizona law requires an individual to file nomination papers wherein they certify they meet the qualifications of the office sought and have met other requirements such as committee formation and signatures. We review elements in the filing that can be verified on their face (completeness, numbers of signatures, etc.). Challenges to the remaining facts in the filing (validity of each signature, residency and other qualification aspects) are solely brought through legal process in the courts.

Because of the importance and profile of the President's case, and at the request of many constituents, I have gone the extra step of asking the State of Hawaii to verify the facts contained in his birth certificate. Hawaii is bound by their own statutes to provide such verification to other state officials in their official duties and, to Brian's point, I do not believe they can avoid their duty to me under a criminal investigation loophole because I am not investigating them.

The fact that Obama certified his citizenship on the 2008 PPE form is irrelevant to me because Arizona does not grant its electoral votes in the PPE. I believe there is significance in changing our nomination form for the actual election to include the certification.

With all due respect, the MCSO investigation has not proven anything other than raised probable cause that the birth certificate posted on the Whitehouse website "may be" a forgery. The next lawful step would be for the Sheriff's office to turn their findings over to the County Attorney for prosecution. Evidence would be brought on both sides and a judge should issue a decision. Whether or not that happens, if Hawaii can't or won't provide verification of the President's birth certificate, I will not put his name on the ballot.

I can tell from the tone and language of your letters that the only acceptable outcome for you is that his name not be on the ballot, period. That may be what happens, but under my watch, it won't happen based on opinions, petitions, probability or pledges to support or oppose me in the 2014 Governor's race. My oath of office is to uphold the Constitution and laws of our State and country, and I'm going to do that by following the law. I look forward to continuing to work this issue under those parameters. Otherwise, I will respectfully agree to disagree.

Sincerely,

Ken Bennett
Secretary of State

About The Author

Nick Martin is an associate editor at TPM in New York City. He came to the site in 2011 as a reporter for TPMMuckraker. Previously, he worked in Arizona, first as a staff reporter for a local newspaper and later as a freelance journalist. He also ran the news blog Heat City. Contact him at nick@talkingpointsmemo.com